Exhibit 10.31
THIRD AMENDMENT AGREEMENT
EXHIBIT 10.31
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THIRD AMENDMENT AGREEMENT
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THIRD AMENDMENT AGREEMENT (this "AGREEMENT") dated as of March 5, 2003
by and among (1) Imagistics International Inc. (the "BORROWER"), (2) Fleet
Capital Corporation ("FLEET"), and the other financial institutions party to the
Credit Agreement (as defined below) as lenders (collectively, the "LENDERS" and
individually, a "LENDER") and (3) Fleet, as administrative agent (the
"ADMINISTRATIVE AGENT") for the Lenders with respect to a certain Credit
Agreement dated as of November 9, 2001 by and among the Borrower, the Lenders
and the Administrative Agent, as amended by that certain First Amendment
Agreement dated as of March 19, 2002 and that certain Second Amendment Agreement
dated as of July 19, 2002 (as amended, the "CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders amend certain
terms and conditions of the Credit Agreement on the terms and conditions set
forth herein; and
WHEREAS, the parties hereto have agreed to amend certain provisions of
the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition
that are defined in the Credit Agreement (after giving effect to the amendments
thereof set forth herein) shall have the same meanings herein as therein.
2. RATIFICATION OF EXISTING AGREEMENTS. All of the Borrower's
obligations and liabilities to the Creditors as evidenced by or otherwise
arising under the Credit Agreement, the Notes and the other Credit Documents,
are, by the Borrower's execution of this Agreement, ratified and confirmed in
all respects. In addition, by the Borrower's execution of this Agreement, the
Borrower represents and warrants that it does not have any counterclaim, right
of set-off or defense of any kind with respect to such obligations and
liabilities.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Creditors that all of the representations and warranties
made by the Borrower in the Credit Agreement, the Notes and the other Credit
Documents are true in all material respects on the date hereof as if made on and
as of the date hereof, except to the extent that such representations and
warranties relate expressly to an earlier date.
4. CONDITIONS PRECEDENT. The effectiveness of the amendments
contemplated hereby shall be subject to the satisfaction on or before the date
hereof of each of the following conditions precedent:
(a) Representations and Warranties. All of the representations
and warranties made by the Borrower herein, whether directly or
incorporated by reference, shall be true and correct on the date hereof
except as provided in ss.3 hereof.
(b) Performance; No Event of Default. The Borrower shall have
performed and complied in all respects with all terms and conditions
herein required to be performed or complied with by it prior to or at
the time hereof, and there shall exist no Default or Event of Default.
(c) Corporate Action. All requisite corporate action necessary
for the valid execution, delivery and performance by the Borrower of
this Agreement and all other instruments and documents delivered by the
Borrower in connection therewith shall have been duly and effectively
taken.
(d) Delivery. The parties hereto shall have executed this
Agreement and delivered this Agreement to the Agent.
5. AMENDMENTS TO THE CREDIT AGREEMENT.
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5.1 AMENDMENTS TO SECTION 1.01.
(a) The following definition appearing in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Permitted Repurchase Amount" shall mean an amount equal
to the sum of (a) $78,000,000, plus (b) the amount of net cash
proceeds actually received by the Borrower from the issuance
and/or resale by the Borrower of up to 1,000,000 shares of its
common stock Equity Interests to its employees pursuant to the
Borrower's employee stock purchase plan.
(b) The following new definition is hereby added to Section 1.01 of
the Credit Agreement in its proper alphabetical order to read as
follows:
"Borrowing Base Availability" shall mean, as at any date,
an amount equal to the result of (a) the Borrowing Base, minus
(b) the sum of (i) the aggregate amount of Revolving Loans then
outstanding, plus (ii) the aggregate amount of Swing Loans then
outstanding, plus (iii) the Dollar Equivalent of the aggregate
L/C Liabilities then outstanding, less (iv) the amount of any L/C
cover that shall have been provided pursuant to Section 2.10(d)
and not yet returned.
5.2 AMENDMENT TO SECTION 9.01. Subsection 9.01(j) of the Credit Agreement
is hereby amended in its entirety to read as follows:
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(j) BORROWING BASE CERTIFICATE. As soon as available and in any event
within 30 days after the end of each quarterly fiscal period
(ending on the last day of each calendar quarter) beginning with
the quarterly period ending March 31, 2003, a Borrowing Base
Certificate as of the last day of such accounting period;
provided, that if the most recent Borrowing Base Certificate
provided by the Borrower evidences Borrowing Base Availability
equal to or less than $50,000,000, thereafter Borrower shall be
required to deliver a Borrowing Base Certificate as soon as
available and in any event within 30 days after the end of each
monthly accounting period (ending on the last day of each
calendar month); provided, further, that if Borrower fails to
deliver any such Borrowing Base Certificate when due, then the
Borrowing Base shall be deemed to be $0 (provided, however, that
no prepayment shall be required pursuant to Section 2.10(c)
solely by reason of such deemed reduction) until such time as
Borrower shall deliver such required Borrowing Base Certificate;
Borrower shall notify Administrative Agent promptly upon becoming
aware of any event or condition that could reasonably be expected
to have a material adverse effect on the Borrowing Base;
5.3 AMENDMENT TO SECTION 9.11(b). Subsection 9.11(b) of the
Credit Agreement is hereby amended in its entirety to read as follows:
(b) Minimum Consolidated EBITDA. Consolidated EBITDA
shall not for the previous four consecutive fiscal quarters most recently ended
as of any Test Date occurring on or after December 31, 2002 be less than
$100,000,000.
5.4 AMENDMENT TO SECTION 9.11(c). Subsection 9.11(c) of the
Credit Agreement is hereby amended in its entirety to read as follows:
(c) Limitation on Capital Expenditures. No Company shall,
directly or indirectly, permit the aggregate amount of
all Capital Expenditures made by the Companies during
any period of four consecutive fiscal quarters most
recently ended as of any Test Date occurring on or
after December 31, 2002 to exceed 85% of Consolidated
EBITDA for such period.
6. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Agreement,
all of the respective terms, conditions and provisions of the Credit Agreement,
the Notes and the other Credit Documents shall remain the same. The Credit
Agreement, the Notes and the other Credit Documents, each as amended hereby,
shall continue in full force and effect, and that this Agreement and the Credit
Agreement shall be read and construed as one instrument.
(b) This Agreement is intended to take effect under, and shall
be construed according to and governed by, the laws of the State of New York.
(c) This Agreement may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Agreement it shall not be necessary to
produce or account for more than one counterpart signed by each party
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hereto by and against which enforcement hereof is sought. A facsimile of an
executed counterpart shall have the same effect as the original executed
counterpart.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be executed in its name and behalf by its duly authorized officer
as of the date first written above.
IMAGISTICS INTERNATIONAL INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Its: Chief Financial Officer
FLEET CAPITAL CORPORATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Its: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxx X. X'Xxxxx
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Xxxxxxx X. X'Xxxxx
Its: Vice President
NATEXIS BANQUE POPULAIRES
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its: Associate
JPMORGAN CHASE BANK,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
Its: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By:____________________________
Its:
IBM CREDIT CORPORATION,
as a Lender
By:____________________________
Its:
PEOPLE'S BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Its: Vice President
BANK LEUMI, USA,
as a Lender
By: /s/ Xxxx Xxxx
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Xxxx Xxxx
Its: Vice President
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Its: Banking Officer
[Signature page to Third Amendment Agreement]
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:____________________________
Its:
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Its: Vice President
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
Its: Vice President
TORONTO DOMINION (NEW YORK), INC.,
as a Lender
By:____________________________
Its:
STANWICH LOAN FUNDING LLC,
as a Lender
By:____________________________
Its:
[Signature page to Third Amendment Agreement]
FRANKLIN FLOATING RATE TRUST,
as a Lender
By:____________________________
Its:
FRANKLIN FLOATING RATE MASTER SERIES,
as a Lender
By:____________________________
Its:
FRANKLIN CLO I, LIMITED,
as a Lender
By:____________________________
Its:
FRANKLIN CLO II, LIMITED,
as a Lender
By:____________________________
Its:
FRANKLIN CLO III, LIMITED,
as a Lender
By:____________________________
Its:
FRANKLIN FLOATING RATE DAILY ACCESS FUND,
as a Lender
By:____________________________
Its:
[Signature page to Third Amendment Agreement]
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:____________________________
Its:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
as a Lender
By: New York Life Investment Management, LLC, its
Investment Manager
By:____________________________
Its:
ELF FUNDING TRUST III,
as a Lender
By: New York Life Investment Management, LLC as
attorney-in-fact
By:____________________________
Its:
CALIFORNIA PUBLIC EMPLOYEES RETIREMENT
SYSTEM,
as a Lender
By: Highland Capital Management, L.P., as Authorized
Representatives of the Board
By:____________________________
Its:
[Signature page to Third Amendment Agreement]
RESTORATION FUNDING CLO, LTD.,
as a Lender
By: Highland Capital Management, L.P., as Collateral
Manager
By:____________________________
Its:
EMERALD ORCHARD LIMITED,
as a Lender
By:____________________________
Its:
SRV-HIGHLAND, INC.,
as a Lender
By:____________________________
Its:
[Signature page to Third Amendment Agreement]
